Department of Lands v Ellis
[2008] NSWWCCPD 15
•7 February 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Department of Lands v Ellis [2008] NSWWCCPD 15
APPELLANT: Department of Lands
RESPONDENT: Marguerite Ellis
INSURER:Allianz Australia Insurance Ltd
FILE NUMBER: WCC4830-07
DATE OF ARBITRATOR’S DECISION: 17 October 2007
DATE OF APPEAL DECISION: 7 February 2008
SUBJECT MATTER OF DECISION: Section 38 of the Workers Compensation Act 1987; whether the worker was ready, willing and able to accept an offer of suitable employment; whether the employer failed to offer suitable employment
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Moray & Agnew
Respondent: W G McNally Jones Staff
ORDERS MADE ON APPEAL: The Arbitrator’s determination dated 17 October 2007 is confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
Marguerite Ellis (‘the Respondent Worker/Mrs Ellis’) was born on 15 August 1952 and started work for the Department of Lands (‘the Appellant Employer/the Department’) in 1987. She worked with the Department until she suffered a psychological injury as a result of conflict with her immediate supervisor, Mr Cunningham, resulting in her ceasing work on 2 April 2004. Her claim was initially accepted and she was paid compensation until 23 June 2005 when liability was declined under a notice dated 10 May 2005.
On 20 April 2006 Mrs Ellis was medically retired following a recommendation by HealthQuest on 2 March 2006. By an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 2 July 2007 she sought weekly compensation in the sum of $1011.24 per week from 30 March 2005 to 30 March 2006 under section 38 of the Workers Compensation Act 1987 (‘the 1987 Act’) and thereafter at the maximum statutory rate for a single worker with no dependants.
At a conciliation and arbitration on 9 October 2007 the Department did not dispute that Mrs Ellis suffered a psychological injury in the course of her employment but did dispute that she was incapacitated for work and, if she was incapacitated, that she had any entitlement to compensation under section 38 of the 1987 Act.
In a reserved decision the Arbitrator found in favour of Mrs Ellis. The Certificate of Determination issued on 17 October 2007 records the Arbitrator’s determination as follows:
“7. [sic] That the Respondent pay to the Applicant weekly benefits as follows
a. For the period 30th March 2005 to 29th March 2006 under Section 38 at the rate of $1,011.24
b. From 30th March 2006 to date and continuing under Section 40 at the maximum statutory rate for a single worker without dependants.
8. The Respondent to have credit for any payments made to date in relation to weekly benefits.
9. The Respondent to pay the Applicant’s Section 60 expenses.
10.Certify the matter is complex and that the parties costs be increased by 10% in accordance with Item 6 of Table 4 of Schedule 6 to the Regulations.
10. That the Respondent pay the Applicant’s cost as agreed or assessed in accordance with Order 2 of these Orders.”
By an appeal filed on 14 November 2007 the Department seeks leave to appeal the Arbitrator’s determination in respect of the award under section 38 for the period 30 March 2005 to 29 March 2006.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
There is no issue that the thresholds in section 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred:
(a)in finding that the Department failed to provide Mrs Ellis with suitable duties, that finding being against the weight of the evidence (‘did the Department fail to provide Mrs Ellis with suitable employment’);
(b)in finding that Mrs Ellis was ready, willing and able to accept an offer of suitable employment from the Department, that finding being against the weight of the evidence (‘was Mrs Ellis ready, willing and able to accept an offer of suitable employment’), and
(c)failing to give adequate reasons for his decision (‘reasons’).
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34, (2006) 4 DDCR 358 (‘Zheng’) where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
ISSUES BEFORE THE ARBITRATOR
The Department’s counsel succinctly identified the issue before the Arbitrator as being whether there had been a failure by the Department to offer suitable work (T2.58 to T3.16). As the matter unfolded it became apparent that there was also an issue as to whether Mrs Ellis was ready, willing and able to accept an offer of suitable employment from the Department. The Arbitrator determined both issues in favour of Mrs Ellis.
SUBMISSIONS AND FINDINGS
Did the Department Fail to Provide Mrs Ellis With Suitable Employment?
Acting on behalf of the Department’s insurer, Libby McKean, Rehabilitation Consultant with Rehabilitation Services Pty Ltd, prepared a return to work plan for Mrs Ellis in a report dated 30 March 2005. The plan provided for a return to work on modified duties for three and a half hours per day for five days per week from 11 April 2005. Under the heading “Return to work restrictions and [sic] as per medical certificate” the plan states “To avoid supervision by former supervisor (Dr Smith’s report dated 07.03.2005)”.
The Department’s premises are situated over five levels and in four wings of one building. It was proposed that Mrs Ellis return to work at a work station on a different floor and in a different wing to her pre-injury work area thus “significantly reducing the chance of Mrs Ellis being exposed” to Mr Cunningham. The plan proposed that Mrs Ellis’ supervision be at two levels. Day to day supervision to be “under the direction of Mr Goddard” with approval of policy development and monitoring of project outcomes by the Chief Valuer. In this role there would be “no requirement for regular or on-going contact with” Mr Cunningham but with the progress of the return to work plan it would be likely “that he [Mr Cunningham] would attend occasional project briefings” as he was one of the managers responsible for the implementation of the project.
Mrs Ellis responded to the return to work plan by email dated 6 April 2006 addressed to Libby McKean in which she declined to return to work in accordance with the plan.
The Department submits that it did everything in its power to create an appropriate role for Mrs Ellis, and points out that there is no evidence that Mr Cunningham was ever warned or disciplined in relation to his alleged inappropriate behaviour. The worker also had, it is suggested, difficult interpersonal relationships with other co-workers.
It is argued that the return to work plan constituted an offer of suitable employment. Reference is made to the “rehabilitative focus” of sections 38 and 38A (Department of Education and Training v Sinclair [2004] NSWWCCPD 90 at 188) and the principle of mutuality (Nobile v Alpino Continental Gelato (1989) 5 NSWCCR 211). The employer has demonstrated a willingness to fulfil its obligations but the worker has refused to give any consideration to returning to work if there is any risk of contact with Mr Cunningham and has made no attempt to comply with any aspect of the return to work plan, and did not suggest any alternative.
The Respondent Worker argues that the Department is seeking a hearing de novo and has failed to address the fundamental appellate principles discussed in Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56 and Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6, namely, as discussed above, that a review is not a rehearing de novo and a decision can only be revoked where it is affected by some legal, factual or discretionary error.
The Arbitrator preferred and accepted the medical evidence of Mrs Ellis’ treating psychiatrist, Dr Smith, to that of Dr Young for the Department. Dr Smith diagnosed Mrs Ellis as suffering from a Chronic Adjustment Disorder with Depressed and Anxious Mood. The disorder is characterised by an emotional response to a stressful event. In this case, the stressful event involved Mrs Ellis having to work with Mr Cunningham. In his report of 11 July 2005 Dr Smith explored in detail why Mrs Ellis could not “re-engage in the old Land Titles building” (page five) or work with Mr Cunningham. At page six Dr Smith noted that “the possibility of re-engaging with Mr Cunningham” resulted in a perpetuation of Mrs Ellis’ stressor and in a marked increase in her symptoms. He concluded at page seven:
“6.As I had previously stated, it is my opinion that Ms Ellis [sic] would be fit for employment generally with the proviso that she have no contact with Mr Cunningham. It is my understanding that this can only be obtained if she moves to an alternative building where she has no interaction with Mr Cunningham.
7.I remain of the firm opinion that with her injury she is unable and with [sic, without] substantial risk of further injury to engage in her pre injury employment duties. This is because of either direct exposure to Mr Cunningham or alternatively because of his presence in the building where she is required to work.” (emphasis added)
In his report of 16 October 2006 Dr Smith noted that Mrs Ellis was medically retired on 20 April 2006, after having been assessed by Dr Roberts, psychiatrist, at Healthquest. He stated at page two that “the proviso that I outlined in my earlier report, namely that she not have contact with Mr Cunningham, still applies.”
Having accepted Dr Smith’s evidence (Statement of Reasons for Decision (‘Reasons’), paragraph 32), the Arbitrator then found the return to work plan was inadequate as it did not address the concerns “quite rightly voiced by both the Applicant and Dr Smith” (Reasons, paragraph 35). This conclusion was open on the evidence and discloses no error. I agree with it.
Whilst the return to work plan stated that there was no requirement for “regular or on-going contact” between Mrs Ellis and Mr Cunningham it expressly acknowledged that there would be contact, as he would attend occasional project briefings as one of the managers responsible for the implementation of the project. In that situation, it was inevitable that under the return to work plan Mrs Ellis and Mr Cunningham would come into contact with each other. For that reason the plan was not suitable and did not constitute an offer of “suitable employment” under the terms of section 43A of the 1987 Act. In particular, the offer did not properly have regard to the terms of Dr Smith’s reports, which made it clear that Mrs Ellis was to have no contact with Mr Cunningham.
It therefore follows that the Arbitrator’s finding that Mrs Ellis had not been offered suitable employment was open on the evidence and discloses no error.
Was Mrs Ellis Ready, Willing and Able to Accept an Offer of Suitable Employment?
The Department argues that the Arbitrator was in error in finding that Mrs Ellis was ready, willing and able to accept suitable employment at the time of the return to work plan (Reasons, paragraph 40). It argues that the content of Mrs Ellis’ email of 6 April 2005 addressed to Libby McKean “clearly demonstrate[s]” that she was not ready, willing and able to accept an offer of suitable employment.
In the email of 6 April 2005 Mrs Ellis stated, among other things, that she:
(a)would not agree to “work in Queens Square whilst David Cunningham is in the same location”;
(b)would never agree to a project briefing with Mr Cunningham in attendance;
(c)would not agree to work on a project she knew nothing about with a person she did not know (Peter Goddard);
(d)could not agree to the duties until she was given more information on how she was to do them;
(e)was not a project officer and had never been trained as one;
(f)found the duties outlined in the return to work plan to be intimidating and daunting, and
(g)would like the plan to state that she would work flexi hours so she could start and finish when she wanted and have a long lunch break if required.
The Department submits:
(a)Mrs Ellis’ demands were unreasonable and indicated that she was not ready, willing and able to accept an offer of suitable employment, and did not wish to participate in any constructive return to work plan and had no intention of becoming involved in the consultative process to enable a return to work plan to be implemented;
(b)the added restrictions referred to by Mrs Ellis were not supported by any medical evidence;
(c)Mrs Ellis never made any application for an alternative position, nor suggested any amendment to the proposed plan and this indicates that Mrs Ellis did not wish to participate in any constructive return to work plan and had no intention of becoming involved;
(d)it was not possible for the Department to guarantee no contact with Mr Cunningham;
(e)contrary to Dr Smith’s opinion a more appropriate manner of treating Mrs Ellis in order to facilitate her return to work would be to teach her skills to cope with the possibility that she might come into contact with Mr Cunningham and positive ways with which to interact with him. The restriction provided by Dr Smith was one based on avoidance and, as such, made it impossible for the employer to establish a workable return to work plan;
(f)any return to work plan must be a process where both parties are prepared to work together to achieve a mutually agreeable outcome;
(g)little consideration was given to what evidence Mrs Ellis provided to satisfy the Arbitrator that she was ready, willing and able to accept an offer of suitable employment, and
(h)Mrs Ellis never attempted a return to work, even on a restricted basis.
Mrs Ellis gave evidence in her statement of 8 May 2007 that upon receipt of the return to work plan she forwarded a copy to Dr Smith who wrote on page four “This plan is not acceptable and is contrary to the recommendations in my report of 7th April 2005. Please devise a new return to work plan.” She added, at page two of her statement:
“Had the Return to Work Plan coincided with Dr Smith’s recommendations I would have been happy to return to work at that stage. Since then however I have heard nothing further from my employer. The rehabilitation provider was withdrawn after liability was declined and my employer sent me to HealthQuest who medically retired me as a result of the medical condition that I continue to suffer.”
Though Mrs Ellis had not been notified of the requirement to take reasonable steps to obtain suitable employment, she has been to Centrelink on two occasions and made enquiries about obtaining suitable employment.
The Arbitrator’s finding that Mrs Ellis was ready, willing and able to accept suitable employment (Reasons, paragraph 40) was open on the evidence and discloses no error. The Arbitrator was correct to note that Mrs Ellis’ email of 6 April 2005 did not say, “I will not work” but said, among other things, that she would not work where she would have contact with Mr Cunningham. The Arbitrator’s conclusion was open on the evidence and discloses no error. I agree with it.
It follows that I do not accept the Department’s further submissions on this issue. In respect of those submissions I make the following observations (adopting the paragraph numbering in [33] above):
(a)whilst Mrs Ellis’ email was expressed in emotive terms (something acknowledged by the Arbitrator at paragraph 36 of his Reasons), it did not indicate that she was not ready, willing and able to accept an offer of suitable employment or that she had no intention of participating in a return to work plan;
(b)the reference to the “added restrictions” seems to be a reference to Mrs Ellis’ request that she would like the plan to state that she would work “flexi hours”, something that I assume was available to her in her pre-injury position. It is not necessary for that to be supported by medical evidence;
(c)Mrs Ellis stated that she would like the plan to state that there is to be no contact with Mr Cunningham. This was consistent with Dr Smith’s opinion expressed more than once in his reports. It was not for Mrs Ellis to suggest any further alternatives to the proposed plan. The evidence is that the rehabilitation provider was withdrawn after liability was declined on 10 May 2005;
(d)whilst the Department may not have been able to guarantee no contact with Mr Cunningham, it may have been possible for a return to work plan in which he had no involvement. That was not explored in the evidence;
(e)the appropriate treatment for Mrs Ellis is a matter for her treating specialists who will no doubt act in her best interests in all the circumstances;
(f)I agree that a return to work plan usually involves a process where both parties work together to achieve a mutually agreeable outcome. However, that is always subject to the reasonable restrictions placed on a worker’s return to work by the worker’s treating specialist;
(g)the Arbitrator did consider the evidence and found that Mrs Ellis was ready, willing and able to accept an offer of suitable employment, and
(h)as no offer of suitable employment was made, it is not surprising that Mrs Ellis did not attempt a return to work.
The question of restrictions on Mrs Ellis’ return to work was a matter for expert evidence. Dr Smith addressed that issue and, as the treating psychiatrist, his evidence was accepted.
Reasons
Whilst the Department has alleged that the Arbitrator’s reasons were inadequate, it has not presented any submissions in support of that ground of appeal.
The failure to provide adequate reasons constitutes an error of law and may be a ground to set aside an Arbitrator’s decision. It is clear that Arbitrators have a statutory obligation to provide adequate reasons for their decisions (section 294(2) of the 1998 Act; Part 15 Rule 15.6 of the Rules; Absolon v NSW TAFE [1999] NSWCA 311).
Relevantly, Rule 15.6 provides that:
“(1) A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c) the reasoning processes that lead the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
To succeed in having the decision set aside on this ground the Department must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator has failed to exercise his statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311; ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21).
The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). An Arbitrator’s reasons should be read as a whole and it is not for a Presidential Member on review to comb through the Arbitrator’s findings and reasons in search of error (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444; Minister for Immigration and Multicultural Affairs v Wu Shu Liang [1996] HCA 6; (1996) 185 CLR 259). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424).
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 McHugh JA (as he then was) stated at 280:
“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given.” (emphasis added)
The Arbitrator clearly stated the essential grounds for his conclusions. He accepted the opinions of Dr Smith who had treated Mrs Ellis since she left work (Reasons, paragraph 31) and whose opinions were consistent with the report from Healthquest of March 2006 (Reasons, paragraph 30). In respect of whether the return to work plan constituted an offer of suitable employment, the Arbitrator rightly noted that it did not address the concerns expressed by Mrs Ellis and Dr Smith.
The Arbitrator’s reasons, though brief, indicated the basis for his conclusion and were sufficient, in the circumstances of this matter, to discharge his obligations. I reject this ground of appeal.
DECISION
The Arbitrator’s determination dated 17 October 2007 is confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Deputy President
7 February 2008
I TUYET WALLIS CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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